The 2018 Farm Bill has had significant ramifications on the CBD industry. Not only has the industry flourished, but states are coming out with their own laws concerning CBD possession and use. On a bad note though, most of the information out there is conflicting, which makes it difficult to determine whether purchase, possession, and use of CBD are legal in one’s state. Aside from the question of CBD’s legal status under federal law, here is the status of CBD in Alabama according to a public notice released by the Alabama Attorney General.
When it comes to hemp and CBD, every state that has legalized these substances has its own provisions concerning cultivation, research programs, and the like. Having a general overview of each state’s position can provide users with a better sense of how the state treats the substances. This overview covers hemp and CBD in Alabama.
The General Information
On November 20, 2018, the State of Alabama Office of the Attorney General released a public notice and updated such notice on December 12, 2018. The public notice, entitled Guidance on Alabama Law Regarding the Possession, Use, and Sale, or Distribution of CBD (“Guidance”) provides clarity for the state’s residents.
The Guidance takes into account the U.S. Congress’s actions regarding cannabidiol that is derived from industrial hemp. Further, it determines that the bill features provisions on the legalizing of industrial hemp beyond pilot programs identified by Congress in 2014. The notice continues that under the bill “CBD derived from industrial hemp, with a THC concentration of not more than .3% can be legally produced, sold, and possessed in the State of Alabama.”
However, the Guidance makes clear that under the bill, states are permitted to adopt laws “to restrict or regulate the production of industrial hemp. Furthermore, prescription drugs and other consumables containing CBD will continue to be regulated by the U.S. Food and Drug Administration.”
It seems that Alabama is doing just that – invoking its power under the bill to regulate CBD in the state.
Alabama’s Criminal Laws
The Guidance identifies several criminal laws that “might be helpful to the public” concerning the legality of cannabidiol (CBD). Here are the laws identified:
Alabama Crim. Code Section 13A-12-212, -13
Under this section, it is illegal to possess or receive a controlled (regulated) substance. As for section 213, marijuana possession is also illegal and punishable by a Class A misdemeanor when possessed for personal use. If possessed for non-personal use, it is punishable by a Class C felony.
Alabama Crim. Code Section 13A-12-211, -31
Under this section, it is illegal to sell, furnish, give away, deliver, or distribute a controlled substance, including marijuana. Those who violate this section can be punished by a Class B felony. It is also illegal, under section 231, to “traffic” (meaning, sell, manufacture, deliver, or bring into the state) any part of the cannabis (marijuana) plant in an amount that is greater than 2.2 pounds. Those who violate this section are subject to a mandatory prison term that can increase with the weight of the marijuana in question.
- The notice also makes clear that “use of the term ‘marijuana’ or ‘cannabis’ in each of the crimes described above includes the marijuana extract cannabidiol, or CBD.”
Contrary to what some sources state, “Carly’s Law” and “Leni’s Law” are affirmative defenses and only for the “narrow class of individuals” accused of “selling or distributing marijuana, or trafficking in marijuana. Meaning, those who are accused of violating such laws can use these laws as a defense to their alleged violation.
According to the Guidance, the effect of Carly’s law, “is that an individual who has a debilitating epileptic condition and receives a prescription for CBD approved by the UAB Department of Neurology, who is then criminally prosecuted for unlawful possession of marijuana, may be excused for his or her otherwise unlawful conduct. The same would apply to possession of may be excused for his or her otherwise unlawful conduct. The same would apply to possession of CBD by the individual’s parent or caretaker.” The Guidance makes it explicitly clear: Carly’s law did not legalize the possession or use of CBD.
According to the Guidance, the effect of Leni’s Law “is that an individual who has a chronic or debilitating disease or medical condition that produces seizure, who is criminally prosecuted for unlawful possession of marijuana for personal use, maybe excused for his or her otherwise unlawful conduct. The same would apply to possession of CBD by the individual’s parent or guardian.” Likewise, the Guidance makes it explicitly clear, Leni’s law did not legalize the possession or use of CBD.
The Guidance also explains that these laws “include a provision that, for an individual to successfully assert the affirmative defense, the THC level of the CBD must be ‘no more than 3$ relative to CBD according to the rules adopted by the Alabama Department of Forensic Sciences. To be clear, all CBD—whether above or below 3% THC—is illegal under Alabama law, except for the prescription drug Epidiolex.”
Alabama Department of Public Health Rule
The Guidance also discusses the Alabama Department of Public Health’s rule concerning the medical use of FDA-approved drugs that contain CBD, such as Epidiolex. The Guidance explains that the FDA-approved drug can now be legally prescribed by a doctor for treatment of two forms of epilepsy, which are Lennox-Gastaut Syndrome and Dravet Syndrome. Although Carly’s Law and Leni’s Law are affirmative defenses, Epidiolex “will be regulated in the same way as any other prescription drug.”
Even though Epidiolex is regulated like other prescription drugs, the Guidance continues that “selling, delivering, or distributing CBD—other than the FDA-approved prescription drug Epidiolex—is illegal under Alabama law.
Final Points on the Guidance
Lastly, the Guidance also states that the public notice does not address federal law as it pertains to CBD, which is enforced by federal law enforcement agencies. However, it seems that given that the 2018 Farm Bill permits states to create their own laws and regulations, then if Alabama wants to make CBD illegal, —which it has—then it can do so.
The Alabama Hemp Program
The Alabama Department of Agriculture and Industries (“ADAI”) oversees the Alabama Industrial Hemp Research and Pilot Program, which launched in January 2019. The program’s website indicates that the ADAI will be implementing changes to the program to enhance to provide clearer instructions and greater convenience to applicants.
Concerning rules, the ADAI also indicates that it is awaiting an interim final rule related to hemp that will be published by the United States Department of Agriculture (USDA). Once the rule is released, the application period will begin for the 2020 growing season.
The website also makes it very clear that the public should be aware that growing, processing, or handling hemp in Alabama is not legal unless the individual is licensed by the ADAI in the Alabama Hemp Program.
According to the website, hemp has been declassified as a Schedule I drug and deemed an “agriculture commodity.” It further explains that hemp is defined by legislation as all parts of the plant that have under 0.3% THC. This includes deviates, extracts, and cannabinoids.
Farm Bill Removes Hemp as a Controlled Substance
The declassification was announced by a press release by the State’s Department of Agriculture and Industries. The full press release can be read here, and as discussed above, it indicates that hemp is not legal to grow or process in Alabama until there is a plan developed and approved by the United States Secretary of Agriculture.
Reportedly, in March of this year, the state approved 180 applications from framers who applied to grow hemp. Their crop was planted after approval. The report by Al.com indicates that the process was part of a pilot program. After planting in mid-to-late April, the product would be harvested 90 to 100 days thereafter, and the state would have its first legal hemp crop by late summer.
The state’s Department of Agriculture Commissioner Rick Pate shared in the report that if the farmers want to transport the product across state lines, they need to consult with an attorney. He also shared therein that it would be the first hemp-growing year and full of trial and error. The process would allow participants to learn from it and by next year, they’ll be ready to go.
There is also hope that the product will become a cash crop for the state. According to an ABC 3340 report, farmers that have received licenses are hoping to cash in on CBD oil demand. Thousands of seedlings were planted in August. The process is overseen by the Alabama Industrial Hemp Pilot Program, and the regulations and oversight in place are to prevent abuses.
Disclaimer: This is not legal advice or guidance. But simply general information. It is best to stay abreast of federal law and the law in one’s state and individuals are responsible for their own decisions concerning CBD.
Disclaimer: This is not legal advice or guidance. But simply general information. It is best to stay abreast of federal law and the law in one’s state and individuals are responsible for their own decisions concerning CBD and marijuana.